Judicial problem-solving: An evaluation of Grobler v Phillips and Others [2022] ZACC 32

The South African Constitutional Court was recently tasked with considering whether the “just and equitable” requirement of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act had been complied with when an eviction order was granted in the Somerset West Magistrates’ Court. The Magistrates’ Court found that the occupier unlawfully occupied the land and determined that the eviction was just and equitable in the circumstances. However, the High Court and the Supreme Court of Appeal held that the order of the Magistrates’ Court could not be confirmed. With certain conditions attached, the Constitutional Court held that the eviction was just and equitable. These judgments are noteworthy as they highlight the inconsistencies in the reasoning of the various courts that considered the same facts. The conclusion is that judicial reasoning which creates


ABSTRACT
The South African Constitutional Court was recently tasked with considering whether the "just and equitable" requirement of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act had been complied with when an eviction order was granted in the Somerset West Magistrates' Court.The Magistrates' Court found that the occupier unlawfully occupied the land and determined that the eviction was just and equitable in the circumstances.However, the High Court and the Supreme Court of Appeal held that the order of the Magistrates' Court could not be confirmed.With certain conditions attached, the Constitutional Court held that the eviction was just and equitable.These judgments are noteworthy as they highlight the inconsistencies in the reasoning of the various courts that considered the same facts.The conclusion is that judicial reasoning which creates

INTRODUCTION
"It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins." The South African courts are enjoined with the "effective, efficient and expeditious adjudication and resolution of all disputes". 2Judicial officers are, for their part, expected to "resolve disputes [expeditiously] by making findings of fact and applying the appropriate law in a fair hearing". 3The resolution of disputes typically demands no more than ordinary judicial reasoning.However, some complex and contentious disputes will arise, requiring innovative, context-sensitive problem-solving to achieve a just, equitable and legally sound outcome. 4The adjudication of eviction applications in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 5 (hereafter, the PIE Act) often requires both ordinary and complex problem-solving reasoning.Determining whether a person qualifies as an unlawful occupant of private land is generally uncomplicated.However, the actual eviction of an unlawful occupant and the potential for homelessness has proven to be immensely difficult to manage.
In Emfuleni Local Municipality v Builders Advancement Services CC, Willis J commented that he was "bewildered and confused as to how a court is expected to deal appropriately with applications for eviction". 6In referring to this comment, Van Oosten J stated that it is not "appropriate or desirable for a full court to provide the clarity and guidance in the general terms sought", 7 as there is "[n]o general rule, which the wit of man could devise, [that] would be likely to cover all the varying circumstances, which may arise in applications of this nature". 8The challenges inherent in eviction applications have resulted in contradictory assumptions and philosophies by different judicial officers in their attempts to resolve the tension between "tradition and transformation, stability and change and ownership and land reform".9Unfortunately, some of these disputes have been formulated as a contest between the landowner and the unlawful occupier.This reasoning is not conducive to attaining a predictable and humane approach to evictions, as it ignores the role of the state in ensuring adequate access to housing for those experiencing homelessness.The inference is that the adjudication of eviction matters must be accurately framed to focus on the actual human rights issue (of homelessness) that may result from the eviction.This emphasis generates the opportunity for the courts to craft a just and equitable outcome that holds the state accountable to its constitutional obligations to protect, promote and fulfil the rights of vulnerable persons.
The South African Constitutional Court (CC)10 was recently tasked with considering whether the "just and equitable" requirement11 of the PIE Act had been complied with when an eviction order was granted in the Somerset West Magistrates' Court (hereafter, Magistrates' Court).The Magistrates' Court found that the first respondent was an unlawful occupier of private land and eventually ordered that the eviction was just and equitable.However, the Western Cape Division of the High Court, Cape Town (WCC) 12 and the Supreme Court of Appeal (SCA) 13 did not confirm the order of the Magistrates' Court.These courts reasoned that the right to the full exercise of ownership, at times, and in the interests of justice and equity, must yield to the right of vulnerable persons to a home.The decisions of the WCC and SCA did not resolve the dispute between the parties.Their judgments effectively burdened the property owner with an indefinite obligation to provide free housing to the occupier, who was left in a precarious position, knowing that the property owner did not condone her continued (unlawful) occupation of the land.These courts further did not deal with the state's failure to provide access to adequate housing to the unlawful occupier and to protect the owner's property rights.
Thereafter, the CC considered the matter and resolved the dispute by finding that the eviction was indeed just and equitable, with certain conditions attached.However, more than 13 years elapsed, and four judgments were delivered, before the dispute was resolved.
The judgments are noteworthy as they highlight the inconsistencies in the reasoning of the various courts that considered the same facts.In exploring these issues, this article is divided into four sections.The first will deal with the facts of the dispute; the second section will provide a summary of the various judgments, after which the different courts' reasoning will be scrutinised individually and compared.The objective is to establish whether countervailing substantive reasons, such as moral, economic, political, institutional, or other social considerations, influenced the judicial reasoning and eventual decisions.The last part of the article considers the implications of the judgments and present conclusions and recommendations.

FACTUAL BACKGROUND AND SALIENT FEATURES OF THE CASE
The dispute concerned the occupation of a residential house on an erf in Somerset West (hereafter, the property) by the first respondent, Mrs Clara Phillips, an elderly "illiterate and indigent" woman, 14 and her physically disabled son, 15 who was represented in the eviction litigation by a curator bonis. 16The Helderberg Municipality was also cited as a respondent.Phillips initially occupied the property with her parents in 1947 and later with her husband when the property formed part of agricultural land. 17A previous property owner consented to Phillips' residing on the property in terms of what Phillips described as a life-long unregistered right of habitatio or usus. 18This "right" was recorded in a previous sale agreement, where it was confirmed that Phillips and her late husband resided on the property.The "exact nature of the rights of occupancy they may have, if any", were not recorded.Nonetheless, the agreement stipulated that the purchaser and any successors-in-title would not be entitled to evict the occupants. 19The various courts determined that the rezoning of the property from agricultural to residential occurred before 1991 20 or during 2001 21 or 2002. 22The property was again subdivided into several smaller erven in 2001 after being sold to a company for development purposes.The Phillips' house was located on one of the newly subdivided ervens.It was this erf that the applicant, Mr Willem Grobler, purchased in 2008 at a public auction as a residence for his elderly parents. 23 14 See the WCC Judgment at para 12; Phillips was 85 years old at the time that the Constitutional Court considered the matter.
15 SCA Judgment at para 5; CC Judgment at para 1.
There was some dispute over Grobler and Phillips's interactions before and after the sale and transfer.Grobler apparently met with Phillips on at least three occasions over eight months and verbally requested that she vacate the property.After the auction, Grobler personally engaged with Phillips and again verbally requested that she vacate the property.After that, Grobler, formally, by way of his legal representatives, caused notice to be given to Phillips to vacate the property on two months' notice. 24Grobler offered to make a two-bedroom flat available to Phillips "for the rest of her life" and pay for the reasonable removal and relocation costs. 25Phillips rejected the offers.
Some five months later, Grobler instituted legal proceedings against Phillips and her son in the Magistrates' Court, seeking their eviction from the property as unlawful occupiers in terms of the PIE Act.Phillips, who was unrepresented at this stage, opposed the application.She alleged that a previous owner granted her an oral limited real right of habitation on the property and that she was a protected occupier in terms of the PIE Act.The parties could not agree on the time when Grobler became aware of Phillips's right to reside on the property. 26The application was, as a result, referred to oral evidence. 27The Magistrates' Court held that the life-long "right" of habitatio was invalid and unenforceable, as it was not registered against the title deed.The Phillips's thus occupied the property without the further consent of the owner and, therefore, were unlawful occupiers.The Magistrates' Court granted the eviction order, but the determination of an effective date thereof was postponed for consideration at a later date. 28obler, at this time, made an additional offer in terms of which Phillips could remain on the property for a further two months.Thereafter, he would assist Phillips in relocating and cover the reasonable costs of her accommodation in a retirement centre for one year. 29Again, this offer was rejected.The Magistrates' Court then considered Phillips's personal circumstances, the impact of the eviction, and whether alternative accommodation was available.The matter was postponed in order to obtain evidence from the local social services department and municipality regarding the availability of alternative, suitable, state-funded accommodation.Unfortunately, the content of the reports is not discussed in any of the judgments.Phillips was eventually ordered to vacate the property more than a year after the initial eviction order had been granted. 30ssatisfied with the judgment, Phillips obtained legal representation and appealed to the Full Court of the WCC High Court.Phillips, at this time, introduced a further defence.
30 WCC Judgment at para 2; CC Judgment at para 9.
She contended that she qualified as an occupier in terms of the Extension of Security of Tenure Act (ESTA). 31Despite a pre-trial agreement that the appeal would be determined based only on the provisions of PIE, the WCC found that ESTA was applicable.It further held that Grobler had not provided reasonable notice to Phillips to vacate the property and had thus failed to prove that Phillips was an unlawful occupier in terms of the PIE Act.The WCC upheld the appeal. 32 Grobler appealed against the WCC's judgment to the SCA. 33 The President of the SCA requested the involvement of counsel as amicus curiae to assist Phillips with the legal issues raised in the appeal. 34The SCA held that the provisions of ESTA did not apply, as the property was previously, and before Grobler acquired it, rezoned as residential. 35he SCA further confirmed that the right of habitatio was not enforceable against Grobler. 36Grobler had continually, and over an extended period, "clearly and unequivocally" communicated the termination of Phillips's right to occupy the property.Phillips, therefore, became an unlawful occupier of the property. 37After considering Phillips's circumstances and the rezoning of the property, the SCA concluded that Phillips qualified as a vulnerable person. 38The SCA further reasoned that there was no reason to interfere with the discretion of the WCC, held that it was not just and equitable to order the eviction of Phillips, and accordingly dismissed the appeal. 39In their judgments, the WCC and SCA did not once refer to the municipality or its role in evictions.
Grobler applied for leave to appeal to the CC.In dealing with an objection to its jurisdiction, the CC found that an eviction that may result in homelessness will always raise a constitutional issue. 40The CC found that Phillips was an unlawful occupier and that it was just and equitable to order her eviction, subject to Grobler's offer of alternative accommodation.The CC, therefore, granted leave to appeal, upheld the appeal, and set the SCA order aside.The CC made no order as to costs. 41

DISCUSSION OF THE JUDGMENTS OF THE VARIOUS COURTS
Phillips's occupation of the property was not unlawful from its inception, as there was no active invasion or settlement of the property without legal cause.Phillips also believed that she possessed a limited real right to occupy the property and thus 31 Extension of Security of Tenure 62 of 1997; CC Judgment at para 10.
remained passive after Grobler had withdrawn his consent for her to occupy the property.As a result, Phillips never asserted a need for alternative accommodation or indicated that she might become homeless, thereby placing her "in an emergency situation". 42Grobler's circumstances were not discussed in detail, and little is known about him.These facts set the stage for a challenging adjudication process wherein the judicial officers' dispute-resolution and problem-solving skills would be tested.

Specific defences
It is unclear whether Phillips argued that she, due to open, peaceful and uninterrupted occupation for at least 30 years, possibly acquired rights to the property by way of acquisitive prescription. 43An argument of acquisitive prescription seems viable on initial scrutiny, as Phillips had occupied the property for approximately 62 years by the time Grobler acquired it.However, the property was classified as agricultural land until 1991 or possibly 2001, depending on the interpretation of the different courts.No occupier of any portion of the property could, therefore, acquire an occupied portion of land through prescription due to the prohibition on subdivision by the Subdivision of Agricultural Land Act. 44

Protection afforded by ESTA
It is accepted that the property was legally changed or rezoned prior to the auction to allow for residential land use rights on the property.The Land Use Planning Ordinance 45 of 1985 was the legal mechanism in the Western Cape that provided for all land-use-change applications, including rezoning and subdivision applications, when the rezoning of the property occurred.There is no indication in the judgments of whether the decision to approve the reclassification of the property and the subsequent subdivision considered the respective rights and obligations of all those affected by the application. 46nsequently, Phillips received a notice under section 4(2) of the PIE Act. 47This 14-day notice period aims to allow a respondent to obtain legal representation and put all the relevant circumstances before the court. 48Phillips was, however, unrepresented in the The WCC found that Phillips was entitled, on appeal, to raise the new defence without determining whether she provided a basis for this defence.Instead, the WCC held that Grobler had the onus to establish that ESTA did not apply and that Grobler did not discharge this onus. 52The WCC made this finding despite this defence having been introduced on appeal only and despite a pre-trial agreement that excluded further reliance on ESTA. 53The WCC then found that the eviction must be considered in terms of ESTA and that the eviction order of the Magistrates' Court was, as a result, improperly issued.The WCC specifically concluded that, in 2008, Phillips still benefitted from the protection afforded by ESTA as the rezoning occurred without her participation. 54As a result, Phillips did not have an opportunity to assert her rights to the property in terms of ESTA before the rezoning. 55This conclusion is debatable, as the circumstances regarding the rezoning were not explored adequately enough to justify this conclusion.
The judgment of the WCC incorporates several further contradictions, the most obvious of which relates to how the interaction between ESTA and the PIE Act was considered.
The WCC initially stated that "the disputed property only ceased being a farm in 2001, and accordingly, section 2(1)(b) of ESTA finds application in favour of the appellant". 56he WCC thus found that ESTA applies to the dispute and that Phillps did not "have to establish a right of occupation to resist an eviction on the basis that the result is not just and equitable". 57However, the WCC later stated that Phillips would have enjoyed protection under ESTA if she could have provided proof of the right to occupy the property as granted by the former owner.The WCC, however, despite its finding that ESTA was applicable to the matter, also found that the PIE Act was applicable, as it 49 62 of 1997; CC Judgment at para 10. 50Section 1(xi) of the PIE Act.
53 See SCA Judgment at para 9.
regulates evictions from "all land" in South Africa.The WCC accordingly held that it was not just and equitable to grant the eviction of Phillips as an unlawful occupier under the PIE Act based on her personal circumstances. 58e convoluted judgment of the WCC creates the impression that a measure of cognitive bias affected its reasoning.ESTA was relevant in the past but no longer applicable at the time of the eviction application.However, the mere mention of ESTA as a new defence affected the reasoning of the WCC to such an extent that the Court relied on the failure by Phillips to exercise the protection that ESTA offered in the past to justify its application in the present. 59The SCA appropriately reasoned that the WCC should have been persuaded that the property was urban in character, and that Grobler did, as a result, demonstrate that ESTA did not apply. 60

Right of habitatio
The Magistrates' Court correctly found that the life-long right of habitatio was invalid and unenforceable, as the requirements for the acquisition or vesting of a limited real right of habitatio were not present. 61However, the WCC's reasoning on the issue is somewhat vague.The WCC reasons that "it matters not" whether the right is classified as a "personal servitude", a right of "habitatio", "usus" or a "precarium".The WCC, therefore, did not find it necessary to classify the exact nature and extent of the rights conferred on Phillips. 62The WCC merely concluded that Phillips had an entitlement (to lawfully) remain on the property for life. 63It is unclear what meaning the WCC attached to the term "entitlement".Nonetheless, the WCC reasoned that (all) servitudes, in general, constitute a subtraction from the owner's dominium while simultaneously placing certain of the rights of use and enjoyment at the disposal of a third party, in this instance Phillips.
It is appropriate to briefly evaluate the nature of the possible rights Phillips might have acquired in relation to the property.A precarium may be in the nature of a servitude or 58 SCA Judgment at paras 7-8. a precarium proper. 64A precarium proper is revocable at will, as it is in nature purely personal to the grantee, based on liberality or friendship.The existence of a precarium would have obliged the previous owner to give Phillips reasonable notice of the sale of the property and the termination of her right to occupy the property.An existing precarium would only have bound Grobler, as a successor in title, had a tacit re-grant of the concession under a precarium occurred.This situation would have required evidence of knowledge of the precarium by both Grobler and Phillips at the time of registration of the transfer of the property. 65Phillips would have become an unlawful occupier for purposes of PIE on the date Grobler took transfer of the property without such a re-grant of the precarium.Despite its possible application, the judgments do not explore this matter further.
A right of habitatio is classified as a personal servitude and specifically as a limited real right that confers on its holder the right to reside in the house owned by another without detriment to the substance of the property.The object of the servitude of habitatio is the servient land and not the building.A servitude constitutes an interest in land and, therefore, must be reduced to writing and registered against the title deed as a real right. 66The SCA thus confirmed the Magistrates' Court's finding that Phillips lost the absolute protection against eviction provided by an unregistered lifelong right of habitation. 67The question was then whether the oral agreement between Phillips and the previous owner provided her with any entitlement to occupy the property after it had been transferred to Grobler. 68Phillips alleged that Grobler was made aware of her right to occupy the property at their first engagement, some five weeks prior to the auction where he purchased the property. 69Grobler stated that he received the previous sale agreement after the auction.The WCC and the SCA found that Grobler was at least aware of the alleged unregistered right of habitatio before transferring the property into his name. 70As a result, Grobler did not obtain clean and unencumbered rights to the property at the registration of the transfer.This knowledge created an obligation on Grobler to terminate any right to occupy that Phillips enjoyed.Grobler further needed to provide a reasonable period for Phillips to vacate the property. 69WCC Judgment at para 6.

Unlawful occupation
70 WCC Judgment at para 11; SCA Judgment at para 6.
The jurisdictional requirement that triggers an eviction under the PIE Act demands a factual finding that the respondent "occupies land without the express or tacit consent of the owner or person in charge or without any other right in law to occupy such land". 71The Magistrates' Court held that Phillips was indeed an unlawful occupier of the property.The WCC found that Phillips was not an unlawful occupier, as she was not provided with reasonable notice of termination of her right to occupy the property.The High Court previously determined that the reasonableness of a notice period must be tested at the date the notice was given 72 in view of all the relevant circumstances and must be "infused with constitutionality". 73It is essential to determine whether persons facing eviction have had sufficient time to regulate their affairs before they are required to vacate the property. 74Over an eight-month period, Grobler communicated the withdrawal of his consent for Phillips to occupy the property. 75The formal notice of termination effectively gave Phillips 65 days' notice to vacate the property, whereafter she remained on the property for at least a further 107 days before the application proceedings were initiated. 76Nonetheless, this exercise is of little consequence, as Phillips never asserted that she considered the notice period inadequate.She merely relied on a right to occupy the property and thus did not consider it necessary to enter into any meaningful engagement with Grobler regarding the adequacy of the notice period.
The WCC, in its reasoning, seems to conflate unlawful occupation with reasonable notice to vacate the property.The WCC reasons that the occupation by Phillips remains lawful until this right is lawfully terminated, which would require an appropriate notice and "the lapse of a reasonable time period". 77The further reasoning of the WCC on this point becomes even more puzzling, as it states that "any reasonable period purportedly given to vacate the property cannot remedy the defect in failing to give reasonable notice of termination of the right to occupy". 78It seems that the WCC foresaw a situation whereby Grobler was required to first change the status of Phillips from lawful to unlawful occupant by giving reasonable notice that he would, at some future time, terminate Phillips' right to occupy the property.The SCA commented that the reasoning 76 CC Judgment at para 11.
of the WCC on this issue was "difficult to follow", as it ignored the relevant factors when it concluded that Phillips was an unlawful occupier. 79 The WCC made three further findings regarding Phillips's occupation.It held that ESTA finds application in favour of Phillips, who, as a result of her circumstances, is afforded a "statutory life right" and "complete protection from eviction". 80The WCC thus found that the initiation of the application was a "nullity" since there was no cause of action (Phillips was not an unlawful occupier).Therefore, the judgment of the Magistrates' Court was "void and of no effect". 81However, the WCC, despite finding that Phillips was a lawful occupier and that the application was fatally defective, then proceeded to consider whether it was just and equitable to order eviction. 82Logically, no eviction may follow where the application is a nullity or where a person is in lawful occupation of a property, either under ESTA or PIE.Nonetheless, the WCC proceeded to consider the personal circumstances of Phillips and the provision, or lack thereof, of alternative accommodation by the local government and/or the suitability of Grobler's offer of alternative accommodation.
The SCA stated that a court of appeal would not readily interfere with the discretion of the court a quo to determine whether it is just and equitable to evict the unlawful occupier.The SCA then concluded that the WCC "was entitled to exercise a discretion even though the occupation was unlawful". 83The SCA, therefore, considered the matter as if the WCC were the court of first instance.As a result, the SCA failed to consider whether the Magistrates' Court's postponement of the eviction order to allow the eviction to be executed humanely was the correct procedure.Thus, the SCA never considered whether the eviction might become just and equitable once the statutory requirements were fulfilled. 84The CC ultimately confirmed that the SCA erred in this regard. 85ere is another peculiar aspect in the reasoning of the WCC.The WCC, in what can reasonably be described as an attempt to minimise the adverse effect of the judgment, states that Phillips did not seek to limit Grobler's right of ownership "altogether and ad infinitum". 86The WCC thus addresses its duty to balance the rights of both parties by reasoning that "the value of her [Phillips'] right of occupancy is relatively limited" as she 79 CC Judgment at paras 15-16 and SCA Judgment at para 38.
84 See Fick S & Vols M "Best protection against eviction: A comparative analysis of protection against evictions in the European Convention on Human Rights and the South African Constitution" ( 2016) 3(1) European Journal of Comparative Law and Governance 40 at 58.
was elderly and in a state of "indigence and illiteracy". 87The reasoning, therefore, and by implication, justifies the obligation that was imposed on Grobler by speculating that the limited life expectancy of Phillips would somehow act as a mitigating factor to reduce the impact of her continued (unlawful) occupation of the property.The WCC indirectly acknowledges its discomfort but reasons that its judgment would not have long-term consequences.The SCA decision also does not provide a more plausible justification for its ultimate effect, that is, forcing Grobler to endure Phillips' continued unlawful occupation against his will. 88The SCA merely found that it would not be just and equitable to order the eviction of Phillips but provided no solution to the dispute.
Phillips remained an unlawful occupant and received no assistance from the state to improve her situation.
The reasoning of the WCC and the SCA must be interpreted in the light of the judgment of the SCA in Ndlovu. 89The SCA held that "[t]he effect of PIE is not to expropriate the landowner and cannot be used to expropriate someone indirectly, and the landowner retains the protection of [section] 25 of the Bill of Rights". 90The continued unlawful occupation of land essentially results in a deprivation of property under section 25(1) of the Constitution.The CC, in Claytile, 91 also found that imposing a further obligation on a property owner who accommodated unlawful occupiers for several years should be treated with caution. 92The application of the PIE Act was, therefore, never intended, in its pursuit to prevent the arbitrary deprivation of property, to allow for the expropriation of that land from a private landowner. 93A landowner should not be required to shoulder the state's responsibility to house an unlawful occupant for an indefinite or even extended period, especially where the occupation becomes detrimental to the landowner.

The just and equitable test for eviction
After determining that Phillips was indeed an unlawful occupier, the SCA considered certain relevant factors, including her age and the fact that she occupied the property with her disabled son.The SCA, however, also considered Phillips's "wish" to remain in unlawful occupation of the property as opposed to the benefits offered to her regarding the alternative accommodation. 95This significance which the SCA attached to Phillips's wish confirms the subjective experience of familiarity, habit, security, and identity that people associate with a home.The SCA found that these factors outweighed those that entitled the property owner to obtain an eviction order.The CC found that Phillips's wish or preference does not constitute a factor in determining what is just and equitable.The focus should appropriately be on the effect of the eviction on the constitutional rights of the unlawful occupier.An unlawful occupier may not refuse to be evicted based on a preference to remain in unlawful occupation of the property.The right to access to adequate housing also does not include a claim to choose precisely where the unlawful occupier wants to reside. 96The SCA previously held that ESTA also does not provide a person with the right to choose a house, 97 and the CC confirmed that the right of residence was not necessarily attached to the specific house. 98Phillips rejected the offer of alternative accommodation as she was "accustomed to life in the house she presently occupies and enjoys not only the freedom and space it affords but also the environment around it". 99 Grobler went as far as to forward a list of several properties to Phillips, who viewed some but did not deem them acceptable.Grobler also offered to take responsibility for the removal and transportation costs of Phillips's furniture and personal goods to her new home. 100 The SCA found that Phillips was justified in refusing to accept these offers 101 and that the Court could not make an order amounting to a "compelled ejectment notwithstanding the overriding considerations of justice and equity". 102The SCA further reasoned that the fact that alternative accommodation was offered "would negate the first respondent's dignity rather than protect it". 103The SCA, as a result, did not consider the obligations of the state to provide access to alternative accommodation for those who may become homeless.The SCA insisted on respecting Phillips's preferences, possibly to her detriment.The offer by Grobler would have placed Phillips in an advantageous position, as the alternative accommodation would have been registered in her name, which would have provided Phillips with the psychological and legal 95 SCA Judgment at para 56.
advantage of property ownership, thereby removing the possibility of future attempts to evict her from the property. 104en considering the offer of alternative accommodation, the CC focused on the lack of effort made by Phillips to seriously consider the "generous offers" of alternative accommodation made by Grobler to reach a compromise. 105The CC stated that Phillips might have initially "laboured under this wrong impression" but that she later obtained legal representation.The CC did not speculate whether Phillips's lack of meaningful engagement was due to "poor legal advice", but commented that her actions, or lack thereof, should not disadvantage Grobler. 106However, it was evident that Phillips initially, and after obtaining legal representation, pursued a strategy of adversarial defiance with no regard for the difficulties experienced by Grobler.Grobler endured the continued unlawful occupation of Phillips on his property for more than 13 years, as well as the realities of the time-and cost-implications of litigation.The CC referred to Phillips's failure to engage meaningfully as a "disturbing feature" of the case. 107The CC ultimately determined that Grobler had to purchase a two-bedroom dwelling, which was to be registered in his name, and that Phillips and her son would only have the right to reside in this home for the rest of Phillips's life. 108

Failure of the local municipality to provide alternative accommodation
The courts have stated that it would generally not be just and equitable to order the eviction of unlawful occupiers that would render them homeless. 109The Grootboom judgment confirmed that the state must ensure that evictions are executed humanely, which requires the state to progressively provide access to adequate housing. 110The local municipality has the primary duty to satisfy the housing needs of the people within its jurisdiction. 111The municipality should thus be joined to the proceedings as an interested party with constitutional obligations to people facing eviction. 112In compliance with its obligations, the state must determine the needs of the unlawful occupiers by engaging with them meaningfully and then draft a report on its capacity to provide alternative accommodation to those facing homelessness. 113It would generally not be appropriate for a court to grant an eviction order without prior and meaningful engagement and "a complete and accurate account" of the efforts already made by the state to engage with the occupiers by the state with those affected. 114Engagement between the private landowner and the unlawful occupant only is not sufficient.Meaningful engagement is based on a good-faith collaborative examination of possible solutions that requires the existence of institutional structures and the involvement of persons with appropriate sensitivity and engagement skills, especially when dealing with vulnerable or illiterate persons. 115However, meaningful engagement should not be interpreted as consistently generating an actual agreement between the state and the affected person.Meaningful engagement here is less onerous than the doctrine of "free, prior and informed consent". 116ith regard to Communication No. 5/2015, Djazia and Bellili v Spain, the Committee on Economic, Social and Cultural Rights commented in its views under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights that procedural protections must include a "real opportunity for genuine prior consultation" between the affected parties when eviction proceedings are instituted. 117The Committee noted that domestic courts should consider the impact of the eviction, with particular emphasis on vulnerable persons and the availability of other, less onerous, alternative measures to an eviction.Lastly, the courts must evaluate the reasonable measures taken by the state to provide alternative housing to those who may become homeless due to the eviction. 118Meaningful engagement allows the courts to promote and manage participation by all the parties and to ensure that the state is involved in resolving tensions between private property rights, the health and safety of local authorities, and the housing rights of individuals.
The CC, in Modderklip Boerdery, acknowledged that the role of local government in evictions is complicated, as the latter is "[c]onfronted by intense competition for scarce resources from people forced to live in the bleakest of circumstances …". 119The state should preferably anticipate the probability of an eviction that might cause homelessness and engage with the unlawful occupiers before litigation even commences. 120Where the state fails to anticipate such situations, there would be a positive obligation on the state, within its housing programme, to provide temporary emergency alternative accommodation to those facing homelessness due to an eviction. 121The realisation of this obligation is appropriately placed on the state due to the interrelated, interdependent and indivisible nature of human rights.Therefore, it is not appropriate for a court to make an order in which a private landowner becomes obliged to provide ongoing access to housing for an unlawful occupier.
Muller and Liebenberg discuss the possibility of a "stalemate" in the apparently intractable contest between the competing rights of unlawful occupiers and private landowners. 122This impasse may be framed in terms of vulnerability and potential homelessness set against the state's inability or reluctance to provide alternative accommodation.The authors argue that the joinder of the relevant local government is essential in finding a "tiebreaker" to resolve this dispute. 123The government's meaningful, proactive, and constructive involvement, including the eventual provision of suitable alternative accommodation, creates the platform for appropriate solutions to homelessness.These solutions, by necessary implication, require the courts to monitor and pronounce on the state's compliance with its constitutional and statutory obligations to respect, protect, promote and fulfil the right of access to adequate housing, actions which must be performed in a transparent, accountable, and equitable manner. 124e WCC and SCA failed to appreciate that the participation by the local government was integral to the considerations they were required to entertain.Ultimately, the CC did not need to consider this issue further, as Grobler had made alternative accommodation available at his own cost: Grobler was willing give Phillips six months' notice to vacate the present property and occupy the new dwelling.The CC found that this constitutes a reasonable period. 125Nonetheless, it stressed that there is no quasi-constitutional obligation of horizontal application on private landowners to provide alternative accommodation to an unlawful occupier. 126The offer by Grobler to make alternative accommodation available should not be interpreted as creating an obligation on other landowners to offer alternative accommodation in similar circumstances.An offer by the landowner of alternative accommodation is, therefore, not a precondition but rather a factor to be considered when the Court considers the terms of the eviction order. 127Any offer of alternative accommodation by the landowner should thus not be interpreted as setting a precedent that may bind other landowners in similar circumstances.Phillips was ultimately, through the offer by Grobler and the intervention of the CC, required only to relocate from one home to another in the same community that she resided in before the eviction. 128Nonetheless, 13 years elapsed after Grobler made the initial offer of alternative accommodation.During this time, there was an average increase of 85 per cent in property prices of sectional title scheme property in Somerset West. 129e Modderklip case proposed an alternative approach to ordering the state to provide alternative accommodation.The Court found that the continued unlawful occupation of the land necessitated an order for the payment of constitutional damages by the state to the landowner for as long as the unlawful occupation continues. 130Compensation mitigates the harmful consequences of the unlawful occupation on the private owner.
lifelong right of occupation and were prepared to honour it". 141This reasoning must be interpreted in the light of the previous sale agreement, which recorded that the "exact nature of the rights of occupancy they [including Phillips] may have, if any, are unknown to the seller" but that no successors-in-title may evict the 142 This clause ostensibly attempted to create an interest in land by way of a stipilatio alteri and should have been registered against the title deed.The meaning of the clause in the sale agreement does not describe the specific part of the land in question.As a result, the possibility of registering it as a personal servitude against the title deed is debatable.This discussion is, however, not within the ambit of this note, save to state that the occupation of Phillips was by no means secured.
As stated above, the SCA curiously also deemed that Phillips's wishes outweighed Grobler's constitutional rights.Therefore, the reasoning of both the WCC and the SCA incorporate various biases.These courts initially articulated and framed the dispute emotionally, with Phillips's interests being regarded as paramount.The CC confirmed that this approach effectively placed "too much emphasis on Mrs Phillips' peculiar circumstances". 143The reasoning of the WCC and the SCA further display a bias in support of the omissions of Phillips, who effectively remained passive by failing to engage meaningfully with Grobler. 144These risk-aversive biases result in inaction, and no change to the existing state of affairs is required or ordered.The courts thus avoided a decision that required action leading to a different state of affairs, that is, the just and balanced resolution of the dispute and the relocation of Phillips to a nearby home. 145hese judgments eventually resulted in the unintentional exclusion of available and viable alternative options, such as the offer of alternative accommodation. 146Legal reasoning that incorporates these biases lacks the appearance of rationality and predictability, and results in inconsistent and suboptimal decisions.

CONCLUSIONS
The PIE Act stipulates that the courts must deal with a broad and varied spectrum of facts and issues when adjudicating eviction proceedings.The CC, with regard to eviction matters, stated that "[t]he application of PIE is not discretionary" 147 and that the court must "probe and investigate the surrounding circumstances" and "go beyond its normal functions and … engage in active judicial management …". 148Furthermore, courts must comprehensively consider fairness and related constitutional values to produce a just, equitable and legally sound outcome to the dispute. 149Courts, accordingly, have a duty to seek concrete case-specific solutions based on fairness and equity.The courts may, therefore, not restrict themselves to a passive application of the PIE Act. 150Obviously, judicial officers must remain neutral, but simultaneously, they are expected to go beyond the normal adversarial process of dispute determination. 151The adjudication of eviction matters requires that judicial officers make sensitive and sensible contextsensitive decisions by engaging in innovative problem-solving reasoning.The courts must be alive to their constitutional duty to ensure meaningful participation by the state in eviction matters.This approach creates the conditions for a just, equitable and legally sound eviction.Meaningful engagement between landowners, potentially homeless persons, and the state also gives effect to the substantive safeguards created in the PIE Act.This approach acknowledges the dignity of all the affected parties.The further benefit is that the courts can monitor the reasonableness of the measures taken by the state to make alternative housing available to those facing homelessness.
The reasoning of the WCC and the SCA did not realise Grobler's rights to his property while, at the same time, providing Phillips with an opportunity to obtain ownership of her own home.Their judgments ultimately left Phillips in unlawful occupation of the property belonging to Grobler.These judgments demonstrate that judicial officers are still inconsistent in their eviction reasoning.A just, equitable and legally sound resolution is not achieved by creating obligations for landowners to provide free housing for an indeterminate period to an unlawful occupant.A landowner may, indeed, be required to endure the continued unlawful occupation of a vulnerable person for a reasonable time when the occupant faces a real prospect of homelessness.Under these circumstances, the effective date of the eviction must be subject to a reasonable period of suspension until the state makes alternative accommodation available to the unlawful occupant.A court order that places an indefinite quasi-constitutional obligation on a private landowner to accommodate an unlawful occupant erodes the protection that the Bill of Rights offers against the arbitrary exercise of state power through inaction.
The courts should, therefore, frame evictions as the enforcement of the rights of a potentially homeless unlawful occupier to hold the state to account for its constitutional obligations.Only then will the courts be placed in a position to ensure reasonable outcomes that avoid homelessness and the imposition of quasi-constitutional obligations on private landowners.
See the Prescription Act 18 of 1943 and Prescription Act 68 of 1969; Stoffberg NO and Others v City of Cape Town (1325/2017) [2019] ZASCA 70 (30 May 2019). 44tion 3 of the Subdivision of Agricultural Land Act 70 of 1970; ministerial consent would have been required in terms of section 3 of the Subdivision of Agricultural Land Act to give effect to the prescriptive title in respect of a portion of the agricultural land by way of acquisitive prescription.See also Ploughmann NO v Pauw 2006 (6) SA 334 (C) at paras 39-40. 45d Use Planning Ordinance 15 of 1985.Magistrates' Court.The new defence based on section 2(1)(b), read with section 8(4) of ESTA, was thus introduced only on appeal to the WCC.49Phillips, therefore, effectively relied on the special statutory protection offered by both PIE and ESTA in the WCC.These defences required evidence that Phillips simultaneously qualified as an occupier under ESTA and PIE on the same property.Both statutes aim to prevent unfair evictions, but ESTA focuses on occupiers of rural land belonging to another and aims to protect a different category of occupiers than that envisioned in the PIE Act.The PIE Act expressly excludes a person who is an occupier in terms of ESTA, 50 which, in turn, specifically excludes "land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law …" 51 42Vander Westhuizen J in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd [2011] ZACC 33 at para 81. 43 46See the current requirements in the Spatial Planning and Land Use Management Act 16 of 2013, article 42. 47 See Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) at paras 12-13.
A personal servitude confers the right to use and enjoy another's property and is enforceable against the owner of the property who is burdened with it.A servitude of use or usus is also a limited real right that allows for the holder to occupy immovable property and take the fruits for subsistence needs.See Sonnekus C "Bewoningsreg (habitatio) -Verval dit weens versteuring (vernietiging) van die bouwerk?" (2009) 3 Tydskrif vir die Suid-Afrikaanse Reg 450 at 454-5.See alsoVan der Walt AJ 59See in general Eyal P & Eyal G "Heuristics and biases in judicial decisions" (2013) 49(2) Court Review:The Journal of the American Judges Association 114 at 114-118.60 SCA Judgment at para 35.61 CC Judgment at para 17. 62 "Development of the common law of servitude" 130 South African Law Journal (2013) 130(4) at 722; Vairetti v Zardo NO (12423/2007) [2010] ZAWCHC 146 (12 April 2010); Setlogelo v Setlogeb 1921 CPD 161 at 168-169; Kidson v Jimspeed Enterprises CC 2009 (5) SA 246 (GNP) at 250C-E.
94Section 25(1) of the Constitution of the Republic of South Africa, 1996.See also President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC) at para 40 and Changing Tides (2012) at para 18.